2. Stays pending appeal
Rule 8 of the Federal Rules of Appellate Procedure allows a party to move for a stay pending appeal and outlines the procedures that must be followed in requesting a stay.
The First Circuit follows Fed. R. App. P. 8, under which a party must ordinarily move first in the district court for a stay of the judgment or order of a district court pending appeal. This motion may be made in the Court of Appeals provided that the motion “show[s] that moving first in the district court would be impracticable ... or state[s] that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state[s] any reasons given by the district court for its action.” Fed. R. App. P. 8(a)(2)(A). This motion must also include the reasons for granting the relief requested and the facts relied on, originals or copies of affidavits or other sworn statements supporting facts subject to dispute, and the relevant parts of the record. Fed. R. App. P. 8(a)(2)(B). Additionally, the moving party must give reasonable notice of the motion to all parties.
Courts in the First Circuit may stay penalties for contempt pending the outcome of an appeal. In these cases, it is also likely that the court will expedite the appeal process.
In In re Special Proceedings, 32 Med. L. Rep. 1905 (D.R.I. 2003), the Rhode Island District Court denied a reporter’s motion to stay a court order compelling him to answer a special prosecutor’s questions regarding his source. The source had leaked surveillance tapes of Providence city officials indicted for extortion, bribery and other offenses in violation of a protective order prohibiting dissemination. Id. The court stated that “a party seeking a stay must demonstrate four things: a strong likelihood of success on the merits of its appeal; that [the party] will suffer irreparable harm if a stay is not granted; that the harm will outweigh any harm opposing parties will suffer if the stay is granted; and that the public interest would be furthered by granting the stay.” Id., quoting In re Power Recovery Sys., Inc., 950 F.2d 798, 804 n. 31 (1st Cir. 1991). The court found that the reporter had demonstrated neither a likelihood of success on the merits nor that granting the stay was in the public interest and denied the stay. Id.
After the reporter continued to conceal his source, the District Court held him in civil contempt and ordered him to pay $1,000 a day until the contempt was purged. In re Special Proceedings, 373 F.3d 37, 41 (1st Cir. 2004). The reporter sought review, and the court granted a stay of the order pending expedited review. Id. Although the court expressed doubts about the merits of the case just as it had in the 2003 decision, they held that the First Amendment interests justified a stay. Id. In contrast with the motion to stay the order to compel, the court found that the interest balanced in the reporter’s favor given the expedition of the appeal and the minimal risk of harm from a brief further delay. Id.
In LaRouche, the district court had ordered the media party to submit, for in camera review, the outtakes of a videotaped interview with a prospective key witness. United States v. LaRouche Campaign, 821 F.2d 1176 (1st Cir. 1988). The network did not comply with this order, and the court found it to be in civil contempt. The court also fined the network $500 per day. Id. The fine was stayed pending the disposition of an expedited appeal. Id.
The procedure for filing a stay pending appeal in the Second Circuit is governed by Rule 8 of the Rules of the Second Circuit, which adopts Rule 8 of the Federal Rules of Appellate Procedure. To receive a stay, a party must ordinarily first file in the district court. To move for a stay in the Second Circuit, the party must show that moving in the district court would be impracticable or state that a motion has been made to the district court and that the district court either denied it or failed to afford the relief request. It is necessary to state any reasons the district court gave for its decision. The motion must also include the reasons the Second Circuit should grant the relief requested and the facts relied on, originals or copies of affidavits or other sworn statements supporting disputed facts, and pertinent parts of the record. The party filing the motion for a stay must give reasonable notice of the motion to all parties. A motion for a stay must be filed with the circuit clerk and is normally considered by a panel of the Second Circuit. In exceptional cases, in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge. The court may condition relief on a party's filing a bond or other appropriate security in the district court. For the particular rules of any court in the Second Circuit, go to http://www.uscourts.gov/rules-policies.
While the courts in the Third Circuit do not appear to have expressly addressed the standards governing issuance of a stay pending appeal in the context of an order overruling the journalist's privilege, such stays have been granted (without opinion) both by district courts and the Third Circuit. See, e.g., Cuthbertson I, 630 F.2d at 143; In re Gronowicz, 764 F.2d at 984. In other contexts, in deciding whether to stay an order pending appeal, courts typically consider (1) the degree to which the movant has shown that he or she is likely to succeed on the merits of the appeal; (2) whether the movant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) whether issuance of the stay will harm the public interest. See, e.g., Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991); Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., No. 00-5361 (WGB), 2001 WL 493266, at *1 (D.N.J. Jan. 17, 2001).
A party seeking a stay pending appeal must ordinarily make a motion in the district court that issued the judgment. Such a motion may also be made to the Court of Appeals upon a showing that moving first in the district court would be impracticable, or that the district court denied the initial motion. Fed. R. App. P. 8(a). When weighing whether to grant a stay pending appeal, courts generally consider four factors: 1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; 2) the likelihood that the moving party will be irreparably harmed absent a stay; 3) the prospect that others will be harmed if the court grants the stay; and 4) the public interest in granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). Because of the fundamental constitutional implications of holding reporters in contempt, courts are inclined to grant stays in such cases. See Ashcraft, 218 F.3d at 287 (appeals court stays district court’s contempt order, keeping reporter out of jail pending appeal).
Ordinarily, if a party wishes to obtain a stay of a judgment or order of a district court pending appeal, the party must first make the motion in the district court that issued the challenged judgment or order. Fed. R. App. P. 8(a)(1)(A). However, if the district court denies the motion, or if making it first in the district court would be impracticable, the party may move the court of appeals for a stay pending appeal. Id. 8(a)(2). Such a motion should be made to the clerk of the court of appeals, who will present it to a panel for decision, unless exigent circumstances make that procedure impracticable, in which case the motion may be presented to a single judge of the circuit. Id. 8(a)(2)(D).
The Fifth Circuit has not adopted any special rule or practice with regard to stays pending appeal for journalists seeking to appeal district court contempt orders or rulings on motions to quash. However, the right of release from confinement on bail is addressed in 28 U.S.C. § 1826. That statute provides that bail will not be available if "it appears that the appeal is frivolous or taken for delay." 28 U.S.C. § 1826(b). The Fifth Circuit has indicated that the standard for a district court deciding a request for bail in a civil contempt proceeding involves the same attempt to evaluate the likelihood of the district court's own error as in other civil proceedings in which the court is asked to stay its orders or judgments pending appellate review. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). For instance, a district court in the Fifth Circuit refused to admit contemnor on bail pending appeal in a case where reversal was unlikely, appeal was a valuable tool for delay, the subject investigation involved terrorist activity, and the contemnors were British subjects who might leave the country, or be intimidated into disappearing or providing false testimony. In re Morahan, 359 F. Supp. 858 (N.D. Tex.), aff'd, 465 F.2d 806 (5th Cir. 1972).
Like any party held as a contemnor, however, a journalist adjudged in contempt of court is free to seek from the district court a stay of a contempt order pending an appeal of the decision. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). In Selcraig, the trial court ordered the imprisonment of a reporter for refusing to identify confidential sources. Id. The order for imprisonment was stayed pending the reporter's appeal of the trial judge's contempt determination. Id.
A stay may be sought even before a notice of appeal is filed. David G. Knibb, Federal Court of Appeals Manual § 18.2 (2d ed. 1990). The district court, however, does not lose jurisdiction to grant a stay after the appeal is taken. Id. If the district court fails to act within a reasonable time, the appellant may apply to the court of appeals for a stay pending appeal. Id.
The factors that govern the issuance of a stay pending are (i) whether the applicant has successfully shown that he will likely succeed on the merits; (ii)whether the applicant will be permanently injured (prejudiced) without the stay; (iii) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (iv) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987); Michigan. Coalition of Radioactive Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
No case or statute addresses the precise issue of obtaining a stay in the context of a reporter's privilege issue.
In the Seventh Circuit, a party interested in moving for an expedited appeal should move simultaneously for an advancement of hearing and a stay of the judgment or order appealed from if that is necessary. See Fed. R. App. P. 8, 18. The procedural requirements for seeking a stay pending appeal are left to the judge’s discretion but are guided by the traditional factors. Nken v. Holder, 556 U.S. 418, 434 (2009):
Factors controlling whether a stay will be granted are:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Id. at 434.
There is no statutory or case law that discusses whether a reporter's refusal to comply with a subpoena, that also touches upon a constitutional right, alters the analysis of when a stay should be granted. However, Linnemeir v. Bd. of Trustees of Purdue Univ., 260 F.3d 757 (7th Cir. 2001), suggest that the analysis will not change even when the issuance of stay may also involve issues of constitutional import. In Linnemeir, the Seventh Circuit denied state residents a stay that they sought after the district court refused to grant a preliminary injunction in their favor. At issue was whether Purdue University's presentation of a play violated the First Amendment when the play endorsed anti-Christian beliefs. The court explored the merits of this appeal under a First Amendment analysis, however, the constitutional nature of the issue did not give rise to an alternate set of criteria for granting or denying the stay itself. See also McKevitt v. Pallasch, 339 F.3d 530, 531 (7th Cir. 2003) (7th Circuit considered stay of order to produce tapes under 28 U.S.C. §1782).
Federal Rule of Appellate Procedure 8 is followed in the Eighth Circuit. Visit: https://www.uscourts.gov/sites/default/files/federal_rules_of_appellate_procedure_-_dec_1_2019_0.pdf.
A party may seek a stay in order to preserve the status quo or obtain injunctive relief pending consideration of the appeal. Rutter 6:260. A stay pending appeal effectively divests the district court’s order of enforceability until the appeal’s disposition. Rutter 6:261. The court employs a balancing test in considering a motion for stay, including: (1) whether the movant is likely to succeed on the merits; (2) whether the movant has shown a likelihood of irreparable harm absent a stay; (3) whether the balance of equities tips in the movant’s favor; and (4) the public interest. Rutter 6:268. The procedural requirements for seeking a stay pending appeal are more arduous than those required for an expedited appeal, which focuses only on irreparable harm.
A party seeking a stay pending appeal must ordinarily file the motion in the district court first. Rutter 6:301. A party who elects to first file directly in the Ninth Circuit will have to explain why application to the district court was not practicable. Id. A party should always file in the district court first, even if the party is certain that the district court will deny the motion. Rutter 6:303.
In civil cases, an appellant may make an application for a stay of the judgment or order of a trial court pending appeal, and the request should be made first to the trial court. ALA. R. APP. P. 8 (b). If an appellant seeks a stay from the appellate court, the motion must set forth one of the following grounds for requesting the stay from the appellate court: 1) Making application to the trial court is not practicable; 2) The trial court has denied the application; or 3) The trial court has failed to provide the relief requested by the applicant. Id. When making such an application to the trial court, the appellant must set forth the reasons given by the trial court for its action and should also show the appellant's reasons for seeking the relief requested and the facts the appellant is relying upon. Id. The motion should include any relevant affidavits and relevant portions of the trial record. Reasonable notice of the motion must be given to all parties, and the motion must be filed with the clerk of the appellate court. Id.
Generally, in criminal cases, the court will stay a sentence of imprisonment or a sentence to pay a fine if an appeal is taken. ALA. R. CIV. P. 8 (d). If the sentence is to pay a fine, the court may require the defendant to deposit the whole or part of the fine with the clerk of the court while the appeal is pending. Id.
Perhaps the most useful section of the state's shield law is AS 09.25.330, which provides in pertinent part that during the pendency of an appeal concerning an order entered upholding or denying a claim of reporter's privilege, the privilege shall remain in full force and effect. Should the press for some reason be seeking prompt review, the Supreme Court has recognized that compelling reasons exist for accepting review in cases posing the danger of immediate encroachment on First Amendment rights. Hanby v. State, 479 P.2d 486 (Alaska 1970). Extraordinary legal remedies to protect First Amendment rights are frequently employed and are constitutionally mandated. Id. at 490.
The petitioner should file a separate application for a stay. In the first instance, the application should be filed in the court that issued the ruling that is being appealed from. 1 Arizona Appellate Handbook § 7.8, at 7-29. Division One of the Arizona Court of Appeals (located in Phoenix) will not consider a stay application unless and until an application has been heard and denied by the lower court. Id. § 7.16, at 7-41.
If a stay from the Court of Appeals is necessary, the petitioner can seek a stay under R.P.S.A. 5 and 7(c). These rules provide that the appellate court may grant an interlocutory stay, either ex parte or after notice and hearing, in the same manner and subject to the same limitations that govern the issuance of temporary restraining orders and preliminary injunctions under Ariz. R. Civ. P. 65 – including the rule's security bond provisions.
There is no statutory or case law addressing whether the standard applied to a stay application is different in media cases, or whether a stay is more likely to be granted in such matters.
Ark. R. App. P. Civ. 2(f)(3) provides that neither the petition nor the grant of permission for an appeal automatically triggers a stay. The party may seek a stay from either the circuit court or the Supreme Court.
Ark. R. App. P. Civ. 8 requires that a party seeking a stay pending appeal attach a supersedeas bond, which requires the appellant pay to the appellee all the costs and damages if the court affirms against the appellant. The supersedeas bond must be of sufficient amount as to cover all of the costs and damages, including interest, that may result from the appeal. See Jameson v. Johnson, 343 Ark. 272, 33 S.W.3d 140 (2000). Failure to submit the supersedeas bond with the motion seeking a stay pending appeal will result in the motion's being denied without consideration of its merits. See Wayne Alexander Trust v. City of Bentonville, 345 Ark. 577, 47 S.W.3d 262 (2001).
The reporter may seek a stay pending the appeal by request within the petition for writ of mandamus, or by filing a separate petition for writ of supersedeas. See Cal. Rule Ct. 8.112. If the stay request is contained in a separate petition for writ of supersedeas, the petition must be filed in the court in which the writ petition is pending, be verified, and contain a supporting memorandum of points and authorities. See id. If the stay request is contained within the petition for writ of mandamus, the document must “[p]rominently display the notice ‘STAY REQUESTED.’” Cal. Rule Ct. 8.116. See generally Cal. Rule Ct., Rules 8.112, 8.116 for other specific formatting and content requirements.
The California Supreme Court directed trial and appellate courts to stay any contempt order if a colorable argument can be made on appeal. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). The California Supreme Court held:
To avoid confinement under a judgment of contempt that may subsequently be set aside, a trial court should stay its judgment of contempt to allow the contemnor newsperson sufficient time in which to seek writ relief if the trial court believes there is any colorable argument the newsperson can make against the contempt adjudication. If the trial court nevertheless declines to issue a stay, a reviewing court should do so pending its decision whether to issue an extraordinary writ.
Id. Consequently, a stay of the trial court order should issue under most circumstances.
Rule 62 of the Colorado Rules of Civil Procedure provide for an automatic stay of any final judgment for 15 days from the date of the ruling. If there is no final judgment, counsel for the newsperson should request a stay pending appeal. If a motion to stay under Rule 62 is denied, an application may be made to the appellate court under Colorado Appellate Rule 8. Please note that the appellate court does not acquire jurisdiction to entertain the motion for stay until a notice of appeal is filed.
Practice Book § 61-11 provides for an automatic stay of any appealable order until the time for appeal has passed, and if an appeal has been timely taken, until "final determination of the cause". § 61-11(d) provides for motions to terminate stays. Because no case deals with this issue in the context of reporters' privilege appeals, it is possible that the automatic stay provided by § 61-11 does not exist. In that event, the court is empowered to grant a discretionary stay under Practice Book §61-12, which provides as follows:
In noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court. Such a motion may also be filed before judgment and may be ruled upon at the time judgment is rendered unless the court concludes that a further hearing or consideration of such a motion is necessary. A temporary stay may be ordered sua sponte or on written or oral motion, ex parte or otherwise, pending the filing or consideration of a motion for stay pending appeal. The motion shall be considered on an expedited basis and the granting of a stay of an order for the payment of money may be conditional on the posting of suitable security.
In the absence of a motion filed under this section, the trial court may order, sua sponte, that proceeding to enforce or carry out the judgment or order be stayed until the time to take an appeal has expired or, if an appeal has been filed, until the final determination of the cause. A party may file a motion to terminate such a stay pursuant to Section 61-11.
Given the uncertain state of the law on stays in this context, prudence may dictate following the course under § 61-12.
Under Rule 8 of the Federal Rules of Appellate Procedure and the corresponding Circuit Rule, a party seeking a stay of judgment or of an order of the district court ordinarily must first seek that relief from the district court itself. In the stay motion, the party must state with specificity the reasons for granting the stay and discuss: (1) the likelihood the party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and (4) the public interest. E.g., Hatfill v. Mukasey, 539 F. Supp. 2d 96 (D.D.C. 2008).
Courts have shown a willingness to stay the imposition of fines and confinement pending appeal of a contempt order. See, e.g., Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 143 (D.D.C. 2005); In re Special Counsel Investigation, 332 F. Supp. 2d 33, 34 (D.D.C. 2004).
District of Columbia
Ordinarily, a stay must first be sought from the court or agency whose decision is being reviewed on appeal. D.C. Ct. App. R. 8, 18; see also Wheeler v. Goulart, 593 A.2d 173 (“stay pending appeal of a trial court judgment or order may be granted either by the trial court or by the Court of Appeals under D.C. App. R. 8”); Horton v. United States, 591 A.2d 1280 (D.C. 1991) (both trial and appellate courts are authorized to issue stays of orders and judgments). Note that the court refused to stay a reporter’s commitment following an adjudication of contempt in In re Wheeler, 18 Med. L. Rptr. 2061, 2063 (D.C. Super. Ct. 1991).
A journalist seeking appellate review of an order compelling the disclosure of privileged information must first seek a stay from the court issuing the order, and that court has the discretion to grant, modify, or deny relief. See Fla. R. App. P. 9.310(a). If the court issuing the order denies a stay, the journalist may seek a stay in the appellate court. See, e.g., WTVJ-NBC 6 v. Shehadeh, 56 So.3d 104, 105 n.1 (Fla. 3d DCA 2011) (district court of appeal stayed trial court’s order compelling disclosure of journalist’s information).
If a non-party reporter invokes the privilege but is nevertheless ordered to testify, the reporter is entitled to bring a direct appeal from that order. See, e.g., In re Paul, 270 Ga. 680, 683 (1999) ("[W]e hold that non-parties engaged in news gathering may file a direct appeal of an order denying them a statutory reporter's privilege under the collateral order exception to the final judgment rule."). The filing of the notice of appeal stays the trial court from imposing any punishment to compel compliance with its order. See generally O.C.G.A. §§ 5-6-46; 5-6-13(a). The Georgia Supreme Court, in fact, recognized a right of automatic appeal to avoid the problems caused in the absence of a stay. See In re Paul, 270 Ga. at 683 ("The public interest in a free press would be irreparably harmed if review of the order compelling disclosure had to await a jury verdict in the murder case. Either the reporter would have already revealed the information or been imprisoned for failing to obey the disclosure order.").
A stay may be sought either from the district court, acting in an appeal from magistrate court, or from the Idaho Supreme Court. Such stays are granted in the discretion of the court. In some instances, the issuance of the stay may be contingent upon the posting of a bond or other affirmative action from the party seeking the stay. See, Rule 13 of the Idaho Appellate Rules. A temporary stay may be obtained ex parte, provided that a demonstration of immediate and irreparable injury, loss or damage is established in a verified petition seeking the temporary stay. See, Rule 13.1 of the Idaho Appellate Rules.
The Statute states that the “Privilege continues during pendency of appeal.” 735 ILCS 5/8-908. The court may stay the enforcement of judgment or an judicial order upon just terms. The application of stay must be made to the trial court, or in the alternative, the motion for a stay is made to the reviewing court or judge when application to the trial court is not practical pursuant to Illinois Supreme Court Rule 305(a), (d).v
After a notice of appeal or a motion for discretionary review has been filed, a party may move for intermediate relief in the appellate court. The party must show that if such relief is not granted, he or she will suffer immediate and irreparable injury before a hearing is had upon the motion. Ky. R. Civ. P. 76.33. When the appeal is to the United States Supreme Court, Rule 76.44 provides that such filing does not affect the finality of an opinion or final order. A stay may be granted, however, as may reasonably be required to enable the writ to be obtained. The stay, however, cannot exceed 90 days. Ky. R. Civ. P. 76.44. The fact that the appeal may address an issue which involves a violation of a constitutional right does not affect what standard is applied or whether a stay will be granted. Ky. R. Civ. P. 76.33, 76.44.
In case of any appeal of an order to comply with the subpoena or to disclose information, the qualified protection of the privilege shall remain in full force and effect during the pendency of the appeal. La. R.S. 45:1453, 45:1459(E). In Burns, the court stated that "§1453 gives reporters the right to appeal the ruling without fear of a contempt conviction or imprisonment." Burns, 484 So. 2d at 658.
Rule 8-422 provides: Except as otherwise provided in the Code or Rule 2-632, an appellant may stay the enforcement of any other civil judgment from which an appeal is taken by filing with the lower court a supersedeas bond …. Md. R. App. Rev., Ct. App. & Ct. Special App. 8-422(a) (2017).
Rule 2-632 in pertinent part provides that:
(a) On motion of a party the court may stay the operation or enforcement of an interlocutory order on whatever conditions the court considers proper for the security of the adverse party. The motion shall be accompanied by the moving party's written statement of intention to seek review of the order on appeal from the judgment entered in the action.
(b) Except as otherwise provided in this Rule, enforcement of a money judgment is automatically stayed until the expiration of ten days after its entry.
. . .
(e) Except as provided in this section . . . a stay pending appeal is governed by Rules 8-422 through 8-424. If the court determines that because of the nature of the action enforcement of the judgment should not be stayed by the filing of a supersedeas bond or other security, it may enter an order denying a stay or permitting a stay only on the terms stated in the order. Md. R. Civ. Pro. 2-632 (a) - (b), (e) (2017).
In In re Roche, an application was made to Justice Brennan, sitting Circuit Justice, to stay an order by the Massachusetts high court adjudicating a reporter in contempt. Brennan stayed enforcement of the order, pending a petition for cert to the U.S. Supreme Court. In re Roche, 101 S. Ct. 4 (1980).
For procedures relating to stays pending appeal, see Massachusetts Rule of Appellate Procedure 6.
There is no automatic stay upon appeal for interlocutory appeals. MCR 7.108(B)(2). In order to obtain a stay pending appeal, request must first be made of the trial court. Id. If the trial court denies the request for stay, then a request for stay may be made to the court of appeals. See MCR 7.209(A). A motion for immediate consideration is needed in order to obtain the quickest relief. See MCR 7.105(F). A bond may be required for the stay, in which the party seeking a stay promises to prosecute the appeal with due diligence. See MCR 7.209; MCR 7.108.
Disclosure is automatically stayed during appellate review within the Minnesota state appellate courts; however, if the district court finds that the information sought has been published or broadcast, there is no automatic stay unless an appeal is filed within two days after the order compelling disclosure is issued. Minn. Stat. § 595.024 subd.3.
Miss. R. App. 5(f) states that "[t]he petition for appeal shall not stay proceedings in the trial court unless the trial judge or the Supreme Court shall so order." Thus, even where a party seeks an interlocutory appeal, the proceeding in the trial court will continue absent entry of a stay. See Dr. Orly Taitz, Esq. v. Democrat Party of Mississippi, No. 3:12-CV-280-HTW-LRA, 2015 WL 11005020, at *8 (S.D. Miss. Mar. 31, 2015)
While there is no specific provision in the rules regarding a stay pending appeal, the general practice of counsel in the state is that such matters are stayed informally while the appeal proceeds. The appellate court may itself issue a stay pending resolution of the matter by application of the appealing party or by its own motion.
Appeals from final orders entered by trial level courts may be stayed (the official term is superseded) by discretionary order entered by the court rendering judgment. Either the Court of Appeals or the Supreme Court can stay final orders of trial level courts on appeal, although neither the rules nor decisions specify legal standards for such stays. When the Nebraska Supreme Court agrees to consider an original mandamus action, it typically issues an alternative writ of mandamus and stays the lower court proceedings. See State ex rel. Acme Rug Cleaner, Inc., supra.
A motion for stay pending appeal, or stay pending petition for extraordinary relief, will not be entertained by the Nevada Supreme Court unless a motion for stay is first made in the district court. NRAP 8(a)(1). A motion for stay pending appeal should be premised upon violation of the news shield law codified in NRS 49.275, constitutional right, and a claim of irreparable harm in the event of forced disclosure prior to appellate review.
Absent a court order, the order of the trial court is not stayed pending appeal. There is no case law or statute setting forth a different presumption or process for cases involving the reporter's privilege.
The filing of an appeal from a decision to uphold or quash a subpoena shall act as a stay of all penalties which may have been imposed for failure to comply with the court’s order. N.J.S.A. 2A:84A-21.6.
The reporter’s-privilege statute provides that “[t]he taking of an appeal shall operate to stay proceedings ... in the district court.” NMSA 1978, § 38-6-7(C) (1973). Conceivably, a court could deem this provision an unconstitutional attempt by the legislature “to regulate practice and procedure in the courts.” Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976); see supra pt. VIII(A)(1). But it is presumably valid at least to the extent that the district court’s order pertains to an order of disclosure in proceedings before a legislative, administrative, or executive body. See Ammerman, 89 N.M. at 312, 551 P.2d at 1359. In case the stay provision is unconstitutional with respect to disclosure orders arising out of judicial proceedings, the remainder of this section discusses appellate procedures of general application. See supra pt. VIII(A)(1).
“The granting of an application [for interlocutory appeal] shall automatically stay the proceedings in the district court unless otherwise ordered by the appellate court.” Rule 12-203(F) NMRA. “[A] party seeking either a stay of the order that is the subject of the writ of error or a stay of proceedings pending appeal shall first seek such an order from the district court, and any party may thereafter seek appellate review of the district court’s ruling pursuant to Rule 12-205, 12-206, or 12-207 NMRA.” Rule 12-503(M) NMRA. Rules 12-205, 12-206, and 12-207 concern “Release pending appeal in criminal matters,” “Stay pending appeal in children’s court matters,” and “Supersedeas and stay in civil matters,” respectively, and should be consulted as appropriate. Stays are also available in connection with the issuance of extraordinary writs of prohibition. See Rule 12-504(D) NMRA. Regarding stays of orders and judgments of the magistrate and metropolitan courts, see Rule 2-705(G) to (H) NMRA and Rule 3-706(G) to (H) NMRA.
The reporter may seek a stay pending appeal pursuant to CPLR § 5519(c), which gives either the court of original instance or the reviewing court (the party seeking the stay may apply for it before either) the discretion to stay the enforcement of any order pending appeal. See Grisi v. Shainswit, 119 A.D.2d 418, 507 N.Y.S.2d 155 (1st Dep't 1986) (granting stays pending appeal is, "for the most part, a matter of discretion"). Given that disclosure of the material sought from the reporter prior to an appeal being heard would render the appeal academic, such a request for a stay should be granted. See Van Amburgh v. Curran, 73 Misc.2d 1100, 344 N.Y.S.2d 966 (N.Y. Sup. Ct. Albany Cty. 1973) (stay pending appeal of execution order dismissing petitions for modification of subpoenas requiring policemen to appear at a hearing granted where, absent stay, policemen would be required to attend hearing and appeal would be rendered academic).
The Practice Rules of the Appellate Division explain how to apply for a stay from one of New York’s appellate courts:
(b) Motions or Applications Which Include Requests for Interim Relief.
(1) An application or order to show cause presented for signature that includes a request for a temporary stay or other interim relief pending determination of a motion, or an application pursuant to CPLR 5704, shall be presented in person unless the court excuses such appearance, and shall state, among other things:
(i) the nature of the motion or proceeding;
(ii) the specific relief sought; and
(iii) the names, addresses, telephone numbers and (where known) email addresses of the attorneys and counsel for all parties in support of and in opposition to the motion or proceeding.
N.Y. App. Div. Prac. R. 1250.4(b). The Practice Rules should be consulted for updates. They require “reasonable notice” to the opposing party, and the appellant must file an accompanying affidavit or affirmation confirming this notification. N.Y. App. Div. Prac. R. 1250.4(b)(2). The application or order to show cause must be filed with the clerk at least one week before the return date, id. at 1250.4(a)(2), and served on all parties at least eight days before the return date, id. at 1250.4(a)(4); CPLR 2214(b). Any response must be filed at or before 10:00am on the return date Id. at 1250.4(b)(3). On the return date, the appellate court deems the motion submitted to the court without oral argument. Id. at 1250.4(b)(3).
A request for a stay of a trial court order pending appeal should be made first to the trial court. N.C. App. R. 8(a). If denied, application for a stay pending appeal may be made to the appellate court by filing a petition for a writ of supersedeas. N.C. App. R. 23.
Application to the appellate court to stay a trial court order is properly considered only when an appeal has been taken or a petition for mandamus, prohibition, or certiorari has been filed to obtain review of the order. Craver v. Craver, 298 N.C. 231, 258 S.E.2d 357 (N.C. 1979); N.C. App. R. 23(a)(1). In other words, the writ of supersedeas may issue only in the exercise of, and as ancillary to, the underlying jurisdiction of the appellate court, and its purpose is to preserve the status quo pending the exercise of appellate jurisdiction. New Bern v. Walker, 255 N.C. 355, 121 S.E.2d 544 (N.C. 1961).
An appeal operates as a stay of all proceedings in the lower court relating to the issues included in the appeal. See, e.g., SED Holdings, LLC v. 3 Star Props., LLC, 791 S.E.2d 914, 918 (N.C. App. 2016); Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (N.C. 1981); Joyner v. Joyner, 256 N.C. 588, 591, 124 S.E.2d 724, 727 (N.C. 1962). However, an appeal by itself does not stay enforcement of the order under review.
A request for a stay must initially be sought in the trial court. The motion must set forth the reasons for the requested stay and the facts relied upon. The general rules apply equally to both regular and expedited appeals. The fact that a reporter is addressing a violation of the shield law does not affect the standard.
Rule 7(A), Ohio Rules of Appellate Procedure:
Application for a stay of the judgment or order of a trial court pending appeal, or for the determination of the amount of and the approval of a supersedeas bond, must ordinarily be made in the first instance in the trial court. A motion for such relief or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal may be made to the court of appeals or to a judge thereof, but, except in cases of injunction pending appeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has, by journal entry, denied an application or failed to afford the relief which the applicant requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant and as are reasonably available at the time the motion is filed. Reasonable notice of the motion and the intention to apply to the court shall be given by the movant to all parties. The motion shall be filed with the clerk of the court of appeals and normally will be considered by at least two judges of the court, but in exceptional cases where the attendance of two judges of the court would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court on reasonable notice to the adverse party, provided, however, that when an injunction is appealed from it shall be suspended only by order of at least two of the judges of the court of appeals, on reasonable notice to the adverse party.
The court which entered the order granting or denying a motion related to a subpoena has the discretion to stay the effect of the order, and our experience has been that it will usually do so. If the lower court refuses to enter a stay, a request for a stay can be included in the application for a writ. Writ applications are usually prepared and filed within a few days of the entry of the challenged order, and compliance with an order to divulge information can usually be avoided long enough to get the writ papers filed.
In order to avoid a finding of contempt, the media must seek a stay pending appeal of an order compelling the disclosure of information. The stay must first be requested in the lower court, unless impracticable. Pa. R. App. P. 1732.
In addition, an order providing monetary relief, such as an order imposing a fine for contempt of court, is automatically stayed by filing security, cash or bond, in the amount of 120% of the amount ordered by the court below. Pa. R. App. P. 1731, 1735.
In Commonwealth v. Bowden, 838 A.2d 740, 744 (Pa. 2003), two reporters, having been ordered to testify, sought a stay from the trial court, which was denied. The trial proceeded while they sought a stay from the Superior Court. This was initially granted, but subsequently dissolved. Finally, they sought a stay from the Supreme Court, which similarly issued a temporary stay order that was ultimately dissolved. Id.
Pursuant to Rule 8 of the Rhode Island Supreme Court Rules of Appellate Procedure, application for a stay of enforcement pending appeal must be made in the first instance in the trial court. After a notice of appeal is filed, a Motion for a Stay Pending Appeal may be filed in the Supreme Court, or to a justice thereof. The motion "shall show that application to the trial court for relief sought is not practicable or that application has been made to the trial court and denied, with the reasons given by it for denial, or that the action of the trial court did not afford the relief to which the moving party considers himself or herself to be entitled." Rule 8, R.I. Supreme Court Rules of Appellate Procedure. The motion shall also show the "reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Reasonable notice of the application shall be given to all parties." Id.
Civil contempt is not automatically stayed by appeal. To obtain a stay or writ of supersedeas pending appeal the party must first seek relief from the trial court. If relief is denied, a petition may be filed with the appellate court where the appeal is pending. A stay or supersedeas may be issued upon a showing of irreparable harm. Since the Supreme Court of South Carolina has recognized a First Amendment privilege in a limited set of circumstances, a claim that those circumstances exist but have been disregarded by the court below should be included in the motion if they exist. If the facts are outside the scope of the limited circumstances identified by the Supreme Court, it would not be acceptable to assert a privilege based on the First Amendment.
There is no case law on point, but it is doubtful a stay of jail sentence would not be granted.
An automatic stay of the obligation of a journalist to testify arises if a court divests the journalist of the privilege as soon as a notice of appeal is filed. The statute provides: "The execution of or any proceeding to enforce a judgment divesting the protection of this section shall be stayed pending appeal . . . and the appeal shall be expedited upon the docket of the court of appeals upon the application of either party." Tenn. Code Ann. § 24-1-208(c)(3)(B).
There is no automatic stay pending the outcome of the petition for mandamus or habeas corpus. A stay may be sought in either the trial court of the appellate court and is entirely up to the discretion of the court. The fact that constitutional implications may be involved in the “appeal” does not necessarily mean that a requested stay is any more likely to be granted. In fact, one court found that a petition involving constitutional issues must include “substantive analysis of the facts and authorities relied upon” or it may be considered inadequate. In re Kuhler, 60 S.W.3d 381, 384 (Tex. App.—Amarillo 2001, orig. proceeding).
A stay pending appeal is automatic in Vermont except for certain family law proceedings, for final injunctions, for felony convictions, and for criminal convictions for misdemeanors involving an act of violence against another person. V.R.C.P. 62(d)(1), V.R.Cr.P. 38(a), V.R.F.P. 12(d)(1). A request for a discretionary stay of a judgment, sentence or order pending appeal must ordinarily first be made to the lower court. V.R.A.P. 8(a)(1). If that is not practicable or the lower court has already denied a request for a stay, a request for a stay may be filed with the Supreme Court or to a single justice of that court. V.R.A.P. 8(a)(2). The motion for a stay must state why application was not made to the lower court or if it was, why relief was denied. Id. The motion must also show the reasons for the relief requested and the facts relied upon, and if such facts are subject to dispute, the motion must be supported by affidavits or other sworn statements. Id.
With regard to a civil or criminal contempt order against a reporter, a stay will be automatic pending appeal. An order or decision compelling the attendance of a reporter at trial is likely to be deemed injunctive in nature and an interlocutory appeal will be necessary. A stay is not automatic for an interlocutory appeal from an order suspending, modifying, restoring or granting an injunction, V.R.A.P. 8(a), and thus a motion for a stay, pursuant to the procedures set forth above, must be filed. In such instances, a bond or other security may be required to be posted as a condition of the stay. V.R.A.P. 8(b).
Virginia Code § 8.01-676.1(D) states that the court from which an appeal is sought may refuse to suspend the execution of a decree in cases involving support, custody, or when a judgment refuses, grants, modifies, or dissolves an injunction. In all other cases, an appellant may have the execution of a decree suspended during the appeal if adequate security is provided and the appeal is timely prosecuted. Virginia Code § 8.01-676.1(C).
Washington courts will grant a stay in accordance with RAP 8.1(b)(3). For an (unpublished) Commissioner's order granting a stay in connection with a claim of reporter's privilege, see In re Azula, 28 Med. L. Rptr. 2180 (Wash. App. 2000).
A motion for a stay of the proceedings during an appeal must first be made to the circuit court where the judgment or order desired to be appealed from was entered. If the circuit court refuses to grant a stay, the moving party may, upon written notice to the opposite party, apply to the Supreme Court for a stay. The most immediate and effective route of challenging a circuit court's adverse ruling in a reporter's privilege case is by filing an extraordinary writ, such as a Petition for Writ of Prohibition, or a Petition for a Writ of Mandamus, directly with the state Supreme Court. Historically, because of the constitutional issue involved, the state Supreme Court has docketed and agreed to address such petitions in order to vindicate or protect a reporter's privilege or First Amendment rights. The acceptance of the Petition automatically stays the underlying Order being appealed from.
A person seeking relief pending appeal must file a motion in the trial court and show why the motion is justified. If it is impractical to seek relief in the trial court, however, a motion to a different court must show, in addition to justification, that it was impractical to seek relief in the trial court. These motions must be filed in accordance with Wis. Stat. § 809.14. See Wis. Stat. § 809.12.